presidency; executive branch;
Congress has granted the President enormous power. This is well known, but how we are to assess the legality of exercises of such power still is not. Put simply, there is no clear framework to understand the legality of presidential exercises of statutory power. Scholars have noticed this and, in response, have largely turned to administrative law for guidance. This turn to administrative law is somewhat intuitive but misguided.
Administrative law is a highly reticulated body of law that has developed over decades to regulate executive branch agencies, not the President. It has focused on legitimizing agency power in the face of agencies’ lack of electoral accountability while respecting agency expertise. The President, however, has neither the electoral deficit nor the expertise that has been central to the development of administrative law. For these reasons and others, administrative law is not a good place to start in identifying a legal framework for assessing the President’s conduct. We ought to focus on the President specifically. But how?
This Article suggests looking to an obvious, but largely overlooked, place: the statutory text. It turns out that the text of the statutes delegating power to the President take two basic forms. One is “objective”: it provides the President power when a certain condition exists in the world. The other is “subjective”: it provides the President power when the President “finds” or “determines” that a certain condition exists in the world. This distinction exists throughout the U.S. Code, but no one seems to have noticed it. This Article unearths this distinction and shows how it provides a novel, coherent, and straightforward framework for understanding the legality of the President’s conduct.
In brief, subjective conditions require Presidents to fulfill their subjective duties in “finding” or “determining” that a certain condition exists. But the exercise of such power is lawful even when the President is wrong—the power is premised on the “finding” or “determination,” not the condition being met in fact. Objective conditions, on the other hand, are only valid if the condition has been met in fact. Understanding this distinction clarifies what is required of the President to exercise statutory power lawfully, provides a straightforward framework for judicial review, and enables Congress to better tailor constraint and discretion when it delegates power to the President going forward.
Shalev Gad Roisman,
The President's Subjective and Objective Legal Obligations,
91 Fordham L. Rev. 2195
Available at: https://ir.lawnet.fordham.edu/flr/vol91/iss6/4